Enforcing Section 110(a): Can a Legal Obligation Without a Remedy be an Effective Tool for Preservation?

By Special Contributor posted 07-15-2015 13:09

  
By Andrea Ferster

 View of the National Park Seminary West Campus. | Credit: Payton Chung via Flickr per  Creative Commons.
View of the National Park Seminary West Campus in 2011. | Credit: Payton Chung via Flickr per Creative Commons.
As we approach the 50-year mark of the enactment of the National Historic Preservation Act (NHPA), the Preservation Leadership Forum has enlisted the help of preservation practitioners to take a close look at how the NHPA is used to protect historic places. Earlier this year we took a look at Section 106, and are now covering Section 110, a provision that requires federal agencies to establish a historic preservation program for the identification and protection of historic properties under their direct control or ownership. This third post looks at an important case regarding the judicial interpretation of Section 110(a).

It is a legal maxim that there can be no wrong without a remedy.1 However, the judicial interpretation of Section 110(a) of the National Historic Preservation Act (NHPA) upends that maxim. Instead, in 1996, a federal court concluded that the courts lack effective remedial powers to enforce the mandatory stewardship obligations established by Section 110(a) and declined to take action to halt an agency’s “demolition by neglect” of the National Park Seminary Historic District in Forest Glen, Maryland.2 The question that remains is whether a preservation responsibility that is difficult or impossible to enforce in court can nonetheless be an effective tool for preservation. The ultimate preservation, rehabilitation and adaptive use of the historic properties at Forest Glen, notwithstanding the court’s inaction, suggest that Section 110(a) remains an important polestar for holding federal agencies accountable to meet their stewardship obligations under the NHPA.

The National Trust for Historic Preservation Brings a Test Case for Enforcement of Section 110(a)

When Section 106 of the NHPA was passed nearly 50 years ago, the courts signaled early on their willingness to employ their equitable powers to halt federal “undertakings” that result in the destruction of historic properties in violation of Section 106’s procedures. As one Court explained, while Section 106 may seem only a “command to consider,” its “language is mandatory and the scope is broad.” 3

 View of National Park Seminary  from what would have been the historic approach, from the B&O RR. | Credit: Payton Chung via Flickr per  Creative Commons.
View of National Park Seminary from what would have been the historic approach, from the B&O RR in 2011. | Credit: Payton Chung via Flickr per Creative Commons.
Section 110(a) was enacted in 1980 to emphasize the stewardship responsibilities of federal agencies to maintain and preserve historic properties under their direct ownership or control, even without a specific federal “undertaking” triggering a Section 106 review. And Congress employed strong language in its directive: federal agencies “shall assume responsibility for the preservation of historic property that is owned or controlled by the agency,” and “shall undertake, consistent with the preservation of historic property, [and] the mission of the agency . . . , any preservation as may be necessary to carry out this chapter.” 4 Section 110 appeared to be a potential remedy where agency neglect threatens to destroy a historic property, slowly but just as surely as a wrecking ball.

That was precisely the concern prompting the lawsuit challenging the U.S. Army’s “demolition by neglect” of the National Park Seminary Historic District in Forest Glen, Maryland. A former girl’s school and resort hotel, the historic district was a unique and whimsical collection of buildings in architectural styles from around the world, including a Japanese pagoda, a Dutch windmill, and an English castle. The property had been acquired by the Army in 1942 for use as a rehab and convalescent center for injured soldiers. However, by the 1970s, the Army began to slowly vacate the historic district while at the same time refusing to sell or transfer the property to a new owner. The historic buildings slowly deteriorated as the Army failed to secure the buildings or perform routine maintenance and repairs. Property management decisions were haphazard and bizarre, such as a decision to construct a brand new floor for the gym but not to repair gutters and downspouts, resulting in the partial collapse of the roof over the gym.

 A look at some of the neglect at the National Park Seminary. In this image you can see the Senior House collapsing.| Credit: Save Our Seminary at Forest Glen
A look at some of the neglect at the National Park Seminary. In this image you can see the Senior House collapsing.| Credit: Save Our Seminary at Forest Glen
In 1993, when the vacant historic Odeon Theatre was destroyed by fire (after fire protection and security systems had been disabled by the Army), the National Trust for Historic Preservation and a local preservation group, Save Our Seminary, filed suit in federal district court to enforce the Army’s responsibilities under Section 110(a).

The Federal District Court issued its decision in 1996, finding that the Army’s failure to prepare a historic preservation plan for the historic district “violated Section 110 and its own Army Regulations.” The Court also found that the Army’s dereliction of its responsibilities had irreparably harmed the historic district. Nonetheless, the court concluded it had no authority to direct the Army to remedy “what it undoubtedly broke,” stating:

“It may seem ironic for the Court to find that Walter Reed violated the NHPA and its own regulations for over eight years and nevertheless to conclude that the Army cannot now be ordered to fix what it undoubtedly broke. Congress has decided as a legislative matter, however, to institutionalize the national commitment to historic preservation by creating certain planning, consultation and decisionmaking procedures to assure adequate consideration of preservationist concerns and not, as plaintiffs would have it, by requiring federal agencies to spend the taxpayers’ money on historic preservation when it is not earmarked for such purposes.”5

Losing the Battle but Winning the War

Despite its unwillingness to enforce Section 110(a), the court in the Blanck case also emphasized that Section 110 was not a dead letter. The Court explained, “[l]est this conclusion be misunderstood as somehow diminishing the Army’s obligations under the NHPA or excusing its derelictions over the years, it should be emphasized that . . . . [h]istoric preservation by its very nature demands action to stem the otherwise inevitable wear and tear of time itself, and in obeying the NHPA’s ‘command to consider,’ agencies necessarily will consider taking actions that they might not otherwise even have contemplated.” 6

 |View of the National Park Seminary in Forest Glen, MD. Credit: Payton Chung via Flickr per  Creative Commons.
View of the National Park Seminary in Forest Glen, MD in 2011. Credit: Payton Chung via Flickr per Creative Commons.
And in the end, this is what happened to the National Park Seminary in Forest Glen. In 2004, the Army initiated a Section 106 review in connection with the proposed disposition of the historic district, and ultimately conveyed the property to Montgomery County, Maryland, which chose the Wisconsin-based Alexander Company to redevelop the site as housing. The company has now converted 13 of the seminary's historic buildings into 50 condominiums, 66 rental apartments, and 13 single-family houses. Today the National Park Seminary at Forest Glen is touted as a success story for successful adaptive use of deteriorated historic buildings.7

Ultimately, the inability of the courts to enforce Section 110(a) did not mean that the NHPA’s stewardship responsibilities were meaningless, as preservationists feared. Instead, as the court’s decision in the Blanck case prophesied, agency-wide historic preservation policies and planning mandated by Section 110(a) have helped to “create a culture of stewardship, facilitate the allocation of resources to meet responsibilities, and improve preservation outcomes.”8

Andrea Ferster is a Washington, D.C. lawyer who focuses on litigation and advocacy to enforce federal environmental and historic preservation laws, tax exempt organizations, enforcement of local zoning and land use ordinances, and trail and greenway planning. Ferster has lectured frequently on historic preservation law and serves as General Counsel to the Rails to Trails Conservancy.

Notes:

1. Leo Feist v. Young, 138 F.2d 972 (7th Cir. 1943).

2. National Trust for Historic Preservation v. Blanck, 938 F. Supp. 908 (D.D.C. 1996), aff’d mem., 203 F.3d 53 (D.C. Cir. 1999).

3. United States v. 162.20 Acres of Land, More or Less, 639 F.2d 299, 302 (5th Cir.), cert. denied, 454 U.S. 828 (1981).

4.  Section 110(a) of the NHPA, 54 U.S.C. § 306101(a)(1), (3).

5.  National Trust for Historic Preservation v. Blanck, 938 F. Supp. at 925.

6.  Id. at 925-26.

7. Kaiser, Laura Fisher. "Textbook Success : A vigilant grassroots effort helped save a forgotten school in Maryland," Preservation. September/October 2010.

8.  See Advisory Council on Historic Preservation, “In A Spirit of Stewardship: A Report on Federal Historic Property Management, at 9" (2015)

#Legal #Section110

Permalink